California Organic Products Act

Conkle, Kremer & Engel attorneys Amanda Washton and Desiree Ho attended the Indie Beauty Expo in Los Angeles to take note of emerging trends in the beauty industry. More than 100 brands exhibited their products at this event, many of which recognized a key trend in the beauty market – consumers are becoming increasingly attentive to what is in their products and where their money is going. Countless brands touted business practices such as sharing profits with charitable causes, as well as product features like “vegan,” “natural,” and “organic.” The simpler the ingredient list, the better. The product packaging and displays reflected this gravitation towards simplicity – minimalist typography, clean lines in the artwork, and monochromatic color schemes.

As more companies hop onboard the “organic” and “natural” train, beauty brands should be careful about their advertising and labeling to avoid drawing adverse attention of regulators and others policing the market. Conkle, Kremer & Engel has published multiple blog posts throughout the years concerning “natural” and “organic” product claims. Selling “natural” products in California can be particularly hazardous without the right guidance – “natural” ingredients may be subject to Proposition 65, as CK&E has explained in the past. Manufacturers would do well to remember that the California Supreme Court has warned, particularly in claims of organic contents, “labels matter.”

With decades of beauty industry experience helping companies grow and protect their businesses, CK&E attorneys routinely guide clients through the process of complying with Proposition 65 and other complex regulatory schemes.

John Conkle will attend the conference on behalf of CK&E to address current legal trends and developments in the cosmetic and personal care products industry. This annual event by the PCPC – the leading national trade association for the cosmetic and personal care products industry – is a must-attend for beauty companies across the country, with its unique focus on the many challenges that are on the horizon for the beauty industry. The presentation this year will include a particularly timely focus on international trade issues affecting the cosmetics industry, including appearances by industry representatives from Canada and Mexico.

This year’s conference is particularly topical panel discussion entitled “2016 Elections: What happened and what it means for you!” The panel included Dan Schnur, a leading political strategist and Director of Jesse Unruh Institute of Politics at University of Southern California, which runs the USC-Los Angeles Times Daybreak Poll that was one of the few polls to correctly predict Donald Trump’s election. In comments during their PCPC presentation, the panel noted that if President Trump follows through with pledges such as environmental regulation rollbacks, it is likely that California will respond by enacting its own additional rules and regulations.

Once again, Conkle, Kremer & Engel attorneys Mark Kremer and Kim Sim have been honored to participate in and contribute to the revolutionary Beauty Industry Market Access (BIMA) program, led by beauty industry guru Patty Schmucker of American Made Beauty. BIMA is a multi-day intensive domestic and international trade and business education program taught by leading health and beauty industry experts. BIMA participants focus on key principles essential to expand their personal care products businesses both in the U.S. and overseas.

Mark contributes to the BIMA educational program by teaching modules on domestic and foreign intellectual property protection and international distribution agreements. Participants are particularly advised about cost-effective methods of protecting their intellectual property internationally, such as international trademark registrations through the Madrid System, which can offer a centralized application process for trademark registration in over 90 countries based on a brand owner’s domestic application or registration. Kim adds her expertise in domestic regulatory compliance, including Prop 65, California Organic Products Act (COPA), Safe Cosmetics Act, California Air Resources Board (CARB) regulations and survey requirements, and federal and state Made in the USA regulations.

BIMA is sponsored by Universal Companies, which has been in the beauty industry for over 18 years and is an important distributor of more than 300 brands in the spa, salon, esthetics and massage market, as well as their own proprietary brands.

In partnership with the California Trade Alliance (CTA), access to international trade shows are available to companies that participate in the BIMA programs. BIMA participants can exhibit in the popular California Pavilion regularly sponsored by CTA at Cosmoprof Bologna and Cosmoprof Hong Kong, among the world’s largest and most important beauty industry trade shows.

Conkle, Kremer & Engel attorney John Conkle is proud to have again been invited to join the Personal Care Products Council’s delegation for California Lobby Day, an annual PCPC event held at the Capitol in Sacramento, California. The Personal Care Products Council (PCPC) represents the personal care products, beauty and cosmetics industry at the federal, state and local level on issues of interest to the industry.

California Lobby Day represents a unique opportunity for industry leaders to meet with legislators including Leadership, key Committee Chairs and members of the Legislative Women’s Caucus, state officials, and their staff members and to engage in open discussions about legislative and regulatory issues affecting the personal care products industry. The day is expected to include briefings in the Governor’s Office by the executive department personnel and meetings with staff in the offices of members of the State Legislature, as well as a reception for members of the California Legislature, personnel from the Office of Governor Brown, and PCPC members and staff. Among those with whom John is expecting to meet are Nancy McFadden (Executive Secretary to Governor Brown); Carol Monahan-Cummings (Office of Environmental Health Hazard Assessment); Meredith Williams (Deputy Director of Safer Consumer Products and Workplaces Program, Department of Toxic Substances Control); and Panorea Advis (Director of the Governor’s Office of Business and Economic Development).

Conkle, Kremer & Engel is proud to be an active member of the Personal Care Products Council. Over the years, CK&E has provided legal expertise to the PCPC and its member companies by presenting at conferences organized by the PCPC on legal and regulatory matters, as well as representing many PCPC member companies. CK&E has also been a frequent sponsor of conferences organized by the PCPC and has participated in numerous events hosted by the PCPC.

Aside from California’s general false labeling laws, there are specific laws and regulations regarding organic product labeling. The California Organic Products Act (COPA), generally requires that multi-ingredient cosmetics labeled or sold as organic contain at least 70% organically produced ingredients. But COPA is designed to work in concert with Federal regulations that direct baseline standards for production, labeling and sale of organic products. The California Supreme Court recently addressed whether the Federal regulations of organic products in some manner preempt or supersede California’s consumer protection laws, so that only the very limited Federal remedies can be pursued when there are alleged violations of organic labeling laws.

In Quesada v. Herb Thyme Farms, Inc., the California Supreme Court determined that California’s general laws prohibiting labeling misrepresentation do not conflict with the Federal laws concerning organic production, labeling and sale, but rather complement those Federal laws by allowing additional remedies to be pursued when those laws are broken by fraudulent organic product labeling. The Supreme Court observed that “permitting state consumer fraud actions would advance, not impair” the goals of providing “a level playing field” to manufacturers of organic products and “enhance consumer confidence in meaningful labels and reduce the distribution network’s reluctance to carry organic products.” From this perspective, where products are fraudulently mislabeled as organic, “the prosecution of such fraud, whether by public prosecutors where resources and state laws permit, or through civil suits by individuals or groups of consumers, can only serve to deter mislabeling and enhance consumer confidence.”

The result for manufacturers, distributors and resellers is that organic product labeling can create concerns at multiple levels, including federal and state regulatory liability, and class actions under strong state consumer protection laws. All those involved in the chain of manufacturing and distribution of products labeled as organic should consult with experienced counsel to protect themselves from potential adverse outcomes that can come from several directions. Conkle, Kremer & Engel attorneys are well versed in helping their clients proactively avoid and resolve such problems.

John and Kim will present on “Emerging Legal Issues in the Cosmetic and Personal Care Products Industry.” The topics to be discussed include recent developments involving enforcement of prohibitions on container slack fill, trends in lawsuits and agency action concerning advertising, an update on the California Air Resources Board’s ongoing Consumer and Commercial Products Survey, as well as a discussion about protecting companies from counterfeiting and cybersquatting in the digital age.

CK&E’s presentation from last year’s Emerging Issues Conference can be found here.

The annual event by the PCPC – the leading national trade association for the cosmetic and personal care products industry – is a must-attend for beauty companies across the country, with its unique focus on the many challenges that are on the horizon for the beauty industry.

This year’s agenda will also include updates from the PCPC on key issues for the industry and from the California Department of Toxic Substances Control on the California Safer Consumer Products and Workplaces regulations, as well as presentations on emerging issues in the Americas, safety standards for cosmetics, current and future challenges for Proposition 65. In addition, Deputy Attorney General Robert Sumner is slated to speak at the conference.

CK&E is pleased to once again participate in this annual event and to offer its experience and insight into legal issues affecting the industry to the PCPC and its members.

On April 22, 2015, Conkle, Kremer & Engel attorney John Conkle will again participate in the Personal Care Products Council California Lobby Day, an annual event organized by the PCPC and held at the California State Capitol in Sacramento.

The ambitious, single-day event puts the spotlight on the personal care industry as a key industry for the California economy. According to the PCPC, the beauty and personal care products industry positively affects California in at least the following ways:

The industry employs over 500,000 workers associated with the manufacture, distribution and sale of cosmetics and personal care products

There are over 550,000 licensed beauty professionals in the salon and spa industry

The PCPC’s annual Lobby Day includes a full day of meetings with legislators and state officials, starting with a meeting at the Governor’s Office with top administrative officials. The meetings are followed by educational briefings for legislative staff. While the briefings for staff are taken place, PCPC staff and members will visit legislative offices to speak with lawmakers about bills of interest. The day concludes with a legislative reception for California legislators, the Governor’s Office staff and Administration officials.

Among the legislation that is likely to be addressed with lawmakers at Lobby Day are

Assembly Bill (AB) 888 (Bloom), which would prohibit the sale of personal care products containing plastic microbeads after January 1, 2020, and

AB 708 (Jones-Sawyer), which would prohibit the manufacture, sale or distribution of certain consumer products unless the manufacturer discloses each ingredient contained in the product by posting that information on the product label and on the manufacturer’s website, and provides the website and web page address on the product label, along with a prescribed statement.

Other bills of interest to PCPC include the Proposition 65 bill AB 543 (Quirk), which would provide that a person in the course of doing business does not knowingly and intentionally expose an individual to a chemical known to the State of California to cause cancer or reproductive toxicity if there exists an exposure assessment that meets specified requirements. In addition, the PCPC will present its positions on hazardous waste bill AB 1075 (Alejo) and pharmaceutical waste bills AB 901 (Gordon) and AB 45 (Mullin) with legislative officials. Other key regulatory issues of importance to the personal care industry such as Green Chemistry, Proposition 65, Hazardous Waste, California Organic Products Act and Air Quality are also expected to be addressed at Lobby Day.

CK&E regularly participates in personal care product industry events. As an active member of the PCPC, CK&E is pleased to support the industry’s efforts to advance the legal and regulatory interests of the PCPC and its member companies and is proud to have been invited to again participate in California Lobby Day.

Conkle, Kremer & Engel attorneys Mark Kremer and Kim Sim were recognized in the BIR Article about CITD for their contributions to the BIMA Program. Mark Kremer teaches instructional modules about domestic and international intellectual property protection, including trademarks, and international distribution agreements and relationship management. Kim Sim provides an overview of state and federal regulatory compliance, such as California’s Proposition 65 and organic claims under the California Organic Products Act, and state and federal advertising and substantiation laws, among other laws and regulations.

CK&E attorneys are subject matter experts in the personal care products industry, and bring a wealth of experience to guide industry clients in both the U.S. and international markets.

Conkle, Kremer & Engel attorneys John Conkle and Kim Sim made a well-received presentation on emerging legal trends in the cosmetic and personal care products industry at the Emerging Issues Conference in Santa Monica, California. Their topics included recent developments concerning hazardous waste regulation and trends in advertising and class action litigation affecting the personal care products industry – such as attacks on labeling products as “natural,” the California Organic Products Act. CK&E’s presentation included an update on California’s regulation of volatile organic compounds (VOCs) in consumer products, an issue which has particular urgency because the California Air Resources Board is presently requiring survey responses from all responsible persons engaged in the manufacture or sale of a wide array of consumer products that may have VOCs potentially affecting air quality.

The Emerging Issues Conference is an annual presentation by the Personal Care Products Council. The PCPC is the leading national trade association for the cosmetic and personal care products industry. This Conference featured, among several insightful presentations, remarks by California State Senator Ed Hernandez on the importance of the California market and cooperation between state and business interests. Kish Rajan, Director of the Governor’s Office of Business and Economic Development, gave a lively lunchtime presentation on the state’s determined interest in promotion of economic development.

Conkle, Kremer & Engel attorney Mark Kremer has been honored to participate in and contribute to the revolutionary Beauty Industry Market Access (BIMA) program through the Center for International Trade Development (CITD). The BIMA program was developed and is led by beauty industry guru Patty Schmucker and international trade expert Cesar Arellanes, the Director of CITD in Long Beach. BIMA is a five week intensive international trade and business education program taught by leading health and beauty industry experts. BIMA participants focus on key program principles distinct to conducting business overseas, receive bi-monthly objectives for assessing their business, and ultimately produce an export growth plan exclusive to their business. Participants also have access to upcoming trade missions to the world’s largest emerging market beauty trade shows – effective venues for executing learned principles and business plans.

Mark contributes to the BIMA educational program by teaching modules on domestic and foreign intellectual property protection, domestic regulatory compliance, and international distribution agreements. Participants are particularly interested in cost-effective methods of protecting their intellectual property internationally, such as international trademark registrations through the Madrid System. The Madrid System offers a centralized application process for trademark registration in over 90 countries based on a brand owner’s domestic application or registration. Participants are also interested in CK&E’s practical approach to domestic regulatory compliance, including California’s evolving green chemistry initiative, Safe Cosmetics Act and Proposition 65. Participants have also benefited from CK&E’s tips for forging fruitful business relationships with distributors, based on decades of experience representing clients in the personal care products industry.